IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL REGISTRY

Civil Action No. 73 of 2007

BETWEEN:

RAJENDRA PAL (father’s name Suruj Pal) of Saweni, Lautoka as the father and administratrix of the estate of ABHISEK KUMAR (father’s name Rajend Pal) deceased.
Plaintiff

AND:

MOHAMMED HUSSAIN (father’s name not known to the Plaintiff) of Rakiraki Town, Rakiraki
1st Defendant

AND:

MICHAEL MANOJ KUMAR (father’s name Rana Prasad) of Koronivia Road, Nausori
2nd Defendant

Before: Master Anare Tuilevuka
Counsel: Diven Prasad Lawyers for the Plaintiff

Date of Ruling: 23 September 2011

RULING
(Assessment of Damages)

INTRODUCTION

[1].	In this case, default judgement was entered against both defendants on 9 July 2007. This is my assessment of damages. 

[2].	Mohammed Hussain (“Hussain”), the first defendant, was the owner of vehicle CF 007 at all material times. Michael Manoj Kumar (“Manoj”), the second defendant, was driving CF 007 on 26 February 2004 along Grantham Road when he lost control of it leading to an accident which caused injuries to Abishek Kumar (“Kumar”). Kumar died a few days later on 02 March 2004 from a fractured skull and intra cranial hemorrhage. He was 19 years of age and a first year Bachelor of Science student at the University of the South Pacific majoring in Physics and Engineering. He was studying on a Ministry of Multi Ethnic Affairs award.

THE ACCIDENT

[3].	Kumar was walking along the Grantham Road footpath towards Laucala Bay Road when Manoj’s car careened off the road onto the footpath and mowed Kumar down in the process. Manoj had been trying to overtake two vehicles along that stretch of Grantham Road. Kumar lost all consciousness at the scene and remained in that state until he died on 02 March 2004 at the CWMH hospital. Manoj was later charged and convicted of the offences of Dangerous Driving Occasioning Death and for Failing to Stop after an Accident.

THE CLAIM

[4].	Suruj Pal (“Pal”) is the father of Kumar. He is also the administrator of Kumar’s estate. He filed a writ of summons and statement of claim on 27 February 2007 claiming damages both under the Compensation to Relatives Act (Cap 29) and also under the Law Reform (Miscellaneous Provisions)(Death & Interest) Act (Cap 27). He alleges negligence against Manoj. Against Hussain, he pleads vicarious liability. In paragraph 9 of the statement of claim, he pleads the following: 

THAT by reason of the matters aforesaid, the deceased lost the normal expectation of life and his estate has suffered loss and damage and loss of prospective earnings. The deceased was born on 5th day of March 1985, aged 19 years at the time of his death. He was of good health, hardworking and ambitious. He was a First Year Student at the University of the South Pacific studying Bachelor of Science in Physics Engineering. He was a very bright student and was granted the Multi Ethnic Scholarship. After the death of the Deceased the Plaintiff and his children suffered loss in that they are deprived of the love of the son and a brother and also deprived of financial support.

(my emphasis)

[5].	At the hearing of assessment of damages, Pal tendered the following documents in court.

(i)	Suva High Court Probate No. 42352 (Exhibit 1)

(ii)	Register of Death No. 130751 (Exhibit 2)

(iii)	Police Officers Order for Burial/Cremation (Exhibit 3)

(iv)	Letter from Raiwaqa Police Station dated 29 October 2004 (Exhibit 4)

(v)	Sketch Plan of the scene of the accident (Exhibit 5)

(vi)	Copy Records of the Magistrates Court (Exhibit 6)

(vii)	LTA vehicle details and insurance policy extract (Exhibit 7)

(viii)	Curriculum Vitae and School Reports of the Deceased (Exhibit 8)

[6].	Pal claims special and general damages plus interest and costs as follows: 

(a) special damages.

(b) general damages for pain and suffering.

(c) damages under the Compensation to Relatives Act, Cap 29.

(d) damages under the Law Reform (Miscellaneous Provisions) (Death and Interest), Act, Cap 27.

(e) interest under the Law Reform (Miscellaneous Provisions) (Death and Interest) Act, Cap 27 on the award of damages at the rate of 8% per annum from the date of the accident.

(f) post Judgment interest under the Imperial Judgments Act 1838 and pursuant to order 6 rule 2(12) of the While Book, Vol. 1, 1997 Ed at the rate of 8% from the date of Judgment until payment.

(g) costs on full solicitor/client basis.

(h) interest on the award of cost.

DAMAGES

[11].	In assessing damages, the courts are usually guided by previous awards in cases where the injuries suffered are of equal or comparable severity.

Special Damages

[12].	Special damages are monetary losses actually suffered up to the date of judgment and must be specifically pleaded and strictly proven. In this case, Pal claims $2,905.00 in special damages made up of funeral expenses (including purchase of coffin, mortuary visit, hearse hire and related expenses), medical reports, traveling expenses to CWM Hospital from date of accident till funeral date and the cost of obtaining probate.

[13].	Section 11 of the Law Reform (Miscellaneous Provisions)(Death & Interest) Act specifically allows damages to be awarded in respect of funeral expenses incurred by the party for whose benefit the action is brought. Pal himself is a beneficiary of the Kumar estate and is entitled to claim for funeral expenses.

[14].	In Fiji, some courts have awarded damages for funeral expenses even in the absence of specific supporting evidence. In Jona Moli -v- Dr Frances Bingwor & Others Suva High Court Civil Action No. HBC 335/1998, Mr. Justice Pathik awarded $2,200 for funeral expenses in lieu of the full $3,500 claimed:-

"We are all familiar with the customs of the various races in Fiji and in the context of funeral there are certain expectations and obligations which have to be fulfilled. It is only right that reasonable expenses ought to be allowed without requiring the plaintiff to produce receipts and proof of each items of expenditure as is required for the purposes of proving special damages."

[25]. In view of inadequate evidence to prove the $3,500-00 claimed I will award the sum of $2,200-00 as conceded in cross-examination by the plaintiff. Thus the total award under this head amounts to $2,892-13, which I will round-off to $2,900-00.

[15].	In this case before me, Pal has not produced any receipt for any of the special damages alleged. Nonetheless, I follow the approach of Pathik J in Jona Moli and award $2,500 for funeral expenses only.

General Damages 

[16].	The general damages claimed by Pal are pain and suffering, compensation under the Compensation to Relatives Act, and damages under Law Reform (Miscellaneous Provisions)(Death & Interest) Act. 

[Pain & Suffering]

[17].	Kumar was instantly knocked unconscious upon impact and remained in that state until he died a few days later. He could not have felt any pain in that state. 

[18].	In Hicks v Chief Constable South Yorkshire Police [1992] 2 All ER 65, the House of Lords said as follows:

In this case the deceased died the same day, hence no claim for pain and suffering arises as no damage is given for pain and suffering when unconsciousness and death followed the injury within a very short time (Hicks v Chief Constable South Yorkshire Police [1992] 2 All ER 65).

[19].	I follow Hicks and accordingly, I make no award for pain and suffering.

[Damages under the Compensation to Relatives Act (Cap 29)]

[20].	Awards are made under this Act to compensate dependants for the loss of support they would have been entitled to from a deceased breadwinner had the latter lived on. 

[21].	Parents of a deceased child may still be awarded damages for loss of dependency even where the deceased child was of a tender age, and/or, was still at school and financially dependent on the parent, at the time of death. However, awards tend to be very nominal in such cases (see especially Buckland). They are usually based on how much the deceased child would have contributed to the household in terms of chores performed until they leave home.

[22].	The courts have also awarded loss of financial contribution to surviving parents of deceased children who – at the time of death - had yet to engage in any form of paid employment. These awards are based on a finding that – had the child lived, he or she would have gone on to find paid employment and contributed financially to the family. 

[23].	Usually, evidence of the deceased child’s good academic record(s) would be decisive in supporting a finding that the child would have gone on to complete his or her education and be engaged in paid employment had he or she lived. The courts have even taken into account the primary school reports of a deceased child, together with evidence tracking the progress of her peers from primary school, to support a similar speculation and an award based on that. The customary practices of the deceased child’s family has been considered to be relevant towards the question of whether or not the child would have contributed financially to the parents up to a specific time – usually up to the point of marriage (see Spitalali v Washbourne (1975); Navunisaravi v Kumar and Chand v Goundar [2001] FJHC 276; [2001] 1 FLR 83 (23 February 2001). 

[24].	At the end of the day, an award for loss of financial support from a deceased child who was yet unemployed at the time of death may depend on whether the court is satisfied that there is a reasonable expectation of pecuniary advantage on the part of the parents and what evidence is there to support this?. In Barnett v Cohen [1921] 2 KB 461, McCardie J said cases of a mere speculative possibility of benefit must be distinguished from those where there is a reasonable probability of pecuniary advantage:

I think that the only way to distinguish between the cases where the plaintiff has failed from the cases here he has succeeded is to say that in the former there is a mere speculative possibility of benefit, whereas in the latter, there is a reasonable probability of pecuniary advantage. The latter is assessable. The former is non-assessable. This test, though necessarily loose, seems to be the only one to apply.

[25].	In this case, Kumar was 19 years of age and pursuing tertiary studies towards a Bachelor of Science studies in physics and technology and on a Fiji Government scholarship award. I have also looked at his curriculum vitae and school reports (exhibit 8 – see paragraph 9(h) above). There was more than a reasonable probability that – had he lived - he would have gone on to complete his studies and found employment in his chosen field. Kumar would thereupon have contributed financially to his family for a few years until he got married at around age 25 when his contribution would be reduced drastically.

[26].	However, having found that, I will not make an award for loss of dependency or loss of financial contribution under the Compensation to Relatives Act. The approach of Fatiaki J in Hari Pratap -v- Attorney General of Fiji and Anor Suva High Court Civil Action No. HBC 95/1986 as reported in Prasad v Hakim appeals to me. i.e. to decline any assessment of damages for loss of dependency but to proceed straight to assessment of damages for lost years under the Law Reform (Miscellaneous Provisions) (Death and Interests) Act as any assessment based on the former would have to be deducted anyway from any award made on the latter.

[Law Reform (Miscellaneous Provision)(Death & Interests) Act]

[27].	An award under the Law Reform (Miscellaneous Provision) (Death and Interests) Act is made for the benefit of the deceased’s estate based on lost years. It is well settled that even if a plaintiff finds difficulty in establishing a claim based on dependency under the Compensation to Relatives Act, the Court may still award damages under the Law Reform (Miscellaneous Provision) (Death and Interests) Act. And even if an award had been made under the Compensation to Relatives Act, that award is usually merged with any award made under the Law Reform Act.

[Loss of Expectation of Life]

[28].	In Fiji, the Courts have awarded damages for loss of expectation of life at $2,500. I award the same in this case.

[Lost Years]

[29].	A claim for lost years accrues to the estate of the deceased under the Law Reform (Miscellaneous Provisions) (Death & Interest) Act. Master Udit summarized the conventional approach for assessing damages for lost years in Prasad v Hakim as follows: 

[33]. The conventional approach to the assessment of damages for the lost years is thus arrived at as follows:-

(a). the deceased net earnings as at the time of the death.

(b). from the net earnings, a deduction must be made of the deceased’s personal earnings.

(c). the sum in para (b) is then multiplied by the actual number of lost years, that too is to be ascertained by the Court taking into account the contingencies and vicissitudes of life.

[30].	Again, the question is how should this court assess Kumar’s net earnings at the time of death considering that he was still a student and had never engaged in any paid employment at the time of death? In Chand v Goundar, the deceased was a 14 ½ year old student when she died. She had never engaged in any form of paid employment. Prakash J nonetheless assessed and made an award for lost years to the sum of $25,500-00 based on the following:

The deceased was about 14½ year old student at her death. According to the evidence she was a healthy child not suffering from any disease. She was an above average student who could have become a nurse or a salesgirl, according to her primary school teacher. Her colleague in school was now a salesgirl earning $50 nett per week. In the Courts view given the lack of evidence it can at best assess the deceased yearly income at $3000.00 per annum. Out of this one half would be for self expenses. An appropriate multiplier given her age and circumstances would be 17 years. As such the damages for lost years would be $25,500.00. 

[31].	In Moli v Bingwor, Pathik J awarded $26,000 – seemingly - for “lost years” but under the Compensation to Relatives Act rather than under the Law Reform (Miscellaneous Provision)(Death & Interests) Act. Below is the relevant extract from Pathik J ‘s judgement:

In Gammell v Wilson (1981) 1 All ER 578 at 588, Lord Edmund Davies states that assessment of damages for the lost years “is at best speculative, usually pure guesswork, and where there is any basis for making a calculation such a basis is usually unreal”.

In the case of an infant as in this case it becomes difficult to make an assessment; one can only rely on prospective loss. Here the deceased did assist her father on the farm and would have continued to assist him had she lived.

The case that is very close to this case is that of Krishna Tandraiya v Dharam Singh (Civil Appeal 17/78 FCA) where a 10 year old boy died in an accident and no order was made under Cap 29 and the plaintiff appealed. An award of $1500 was made. There is a very useful discussion of that subject in the judgment of Henry J A in Tandraiya (supra). 

Further on this aspect of claim under Cap.29 I refer to my judgment in Paras Ram v Ivamere Hotchin & Anor Labasa C.A. 6/91 (1995) where I discussed extensively the principles involved in considering an award.

In the present action, doing the best I can bearing in mind the principles to be applied in cases of this nature I am satisfied that the plaintiff had a reasonable expectation of pecuniary benefit. There is paucity of cases to fall back on in assessing damages in the case of minors and as McCardie J said in Barnett v Cohen (supra) “the whole matter is beset with doubts, contingencies, and uncertainties; however, I consider that I ought to assess and make an award which in my considered view would be reasonable in the circumstances of this case.”

On the facts and circumstances of this case I award the sum of $26,000.00 under this head.

And later:

The following is a summary of orders and awards that I have made:

(a) General damages $
(pain and suffering) 2500.00
(b) Special damages
(funeral and other expenses) 3150.00
(c) Damages under Law Reform
(Misc. Provisions) (Death & Interest)
Act Cap. 27 2500.00
This sum is to be deducted from 
Cap. 29 award
(d) Damages under Compensation to
Relatives Act Cap. 29 26,000
($26,000.00 less $2500.00) 23500.00
(e) Exemplary damages claimed is
nil as no entitlement NIL
(f) Interest – not pleaded NIL
(g) Costs 5000.00
 ________

 $ 34,150.00
 ________ 

The total award therefore with costs is $34,150.00

There will therefore be judgment for the plaintiff in the sum of $34,150.00 against the defendants.

[32].	I have already found that - had Kumar lived, there is a real probability that he would have gone on to complete his tertiary studies and be absorbed into the salaried-professional workforce. He was on course to become a mechanical engineer. Perhaps he would have pursued further qualifications after attaining a bachelor of science degree.

[33].	Mr. Prasad submits that the court should use a multiplier of 16 years. He submits that Kumar would have earned $18,000-00 for the first three years of his working life. 

[34].	He further submits that Kumar's salary would then have increased progressively to $25,000-00 two years following the above and thereafter to $35,000-00 and to $45,000-00 in the next five years.

[35].	I agree that the courts rarely fix a multiplier above 18 and I agree that 16 would be a suitable multiplier in this case. 

[36].	Although there is no evidence before me as to how much a mechanical engineer would earn upon commencing employment immediately upon graduation, $18,000-00 - in Fiji - is not a far-fetched fanciful starting salary for a specialist graduate in any field. By comparison, lawyers who join the civil service upon graduation are paid a starting salary much higher than $18,000. So I accept $18,000 as Kumar's salary per annum.

[37].	There is no real evidence before me as to what Kumar's career progression and related salary increases would have been like if he had lived (cf. Maka v Broadbridge [2003] FJCA 31; ABU0063.2001S (30 May 2003), so I will not speculate any further on this but will take $18,000-00 as Kumar's gross salary per annum.

[38].	I will not assess loss of FNPF based on the above gross annual salary as urged by Mr. Prasad in his submissions because he has not pleaded it. So using 16 as the multiplier and $18,000 as Kumar's net earnings, I assess damages for lost years as follows:

Calculation Table for Lost Years

(i)	Gross earning p.a.	

	=	$18,000-00	
(ii)	Gross per fortnight @ 26 fortnights in a year.	$18,000 x 26	=	$692.31	
(iii)	Nett per fortnight.	$692.31 x 31% (PAYE) = 214.62 (PAYE)	=	$692.31 - $214.62
=$477.69	
(iv)	(deduction for deceased's personal earnings) @ 30% fortnightly pay	$477.69 x 30%	=	$143.31	
(v)	Balance left for estate for lost years	$477.69 - $143.31	=	$334.38 x 26 x 16 =
$139,102.38.
	
	TOTAL				$139, 102.28	

ORDERS

(i)	I make the following awards in favour of the plaintiff against both defendants jointly and severally:

(a)	$ 2,500.00 in special damages.

(b)	$ 2,500.00 for loss of expectation of life (which I add to rather than subtract from the award for lost years)

(c)	$139,102.28 for lost years pursuant to the Law Reform (Miscellaneous Provision)(Death & Interests) Act.

TOTAL 			$144,102.28

(ii)	I also award costs and interest as follows:

(d)	7% p.a interest on $144,102.28 under section 3 of the Law Reform (Miscellaneous Provision)(Death & Interests) Act from 23 February 2007 to 23 September 2011.

(e)	4% post judgement interest on the above sum under the Imperial Judgements Act 1838 (UK) and section 22 of the High Court Act.

(f)	costs which I summarily assess at $1,500-00.

Anare Tuilevuka
Master

At Suva.
23 September 2011.